U.S. Attorney General Holder tells Brownback new gun law is unconstitutional

Topeka  U.S. Attorney General Eric Holder told Gov. Sam Brownback that a new Kansas law that criminalizes federal enforcement of gun laws was unconstitutional.

Holder also warned that the federal government “will take all appropriate action including litigation if necessary, to prevent the State of Kansas from interfering with the activities of federal officials enforcing federal law.”

Letter by AG Holder to Gov. Brownback

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The dispute is over Senate Bill 102, which Brownback signed into law last month. The Second Amendment Protection Act excludes from federal regulation any gun made or owned in Kansas. It will allow law enforcement in Kansas to charge and convict federal authorities with crimes if they try to enforce action against a Kansas-protected gun.

Holder said in a letter to Brownback, “In purporting to override federal law and to criminalize the official acts of federal officers S.B. 102 directly conflicts with federal law and is therefore unconstitutional.” Holder said the Bureau of Alcohol, Tobacco, Firearms and Explosives, the FBI, the Drug Enforcement Administration and U.S. Attorney’s Office for the District of Kansas would continue to enforce federal firearms laws and regulations.

Brownback signed the bill on April 16. The law became effective April 25, and Holder sent the letter one day later.

Supporters of the bill, including the Kansas State Rifle Association, said it was necessary in light of attempts by the federal government to adopt new gun restrictions and regulations.

Kansas Secretary of State Kris Kobach who was one of the co-authors of the law defended it, saying the law will withstand any legal challenge.

“With respect to any litigation, we will happily meet Mr. Holder in court,” Kobach said.

Since the law governs guns that remain in Kansas, they are exempt from the interstate commerce power of the federal government, he said.

“While some federal regulations of firearms are permissible exercises of the interstate commerce power, others clearly are not. One of the things that the federal government cannot do is regulate firearms that have never travelled in interstate commerce and that have no substantial effect on interstate commerce — firearms covered by SB 102,” Kobach said.

But U.S. Attorney Barry Grissom issued a statement calling the state law, “illegal, unenforceable, and also bad policy.”

Grissom said the statute threatens federal officers who are trying to keep the keep the United States safe. “These hard-working federal employees cannot be forced to choose between the risk of a criminal prosecution and the continued performance of their federal duties,” he said.

Kansas Attorney General Derek Schmidt has said it would cost $625,000 to defend legal challenges against the law, according to a memo from the Kansas Legislative Research Department.

The bill was approved by wide margins in the Legislature: 35-4 in the Senate and 96-24 in the House. Among Douglas County legislators, only state Sen. Marci Francisco, D-Lawrence, and state Rep. John Wilson, D-Lawrence, voted against the final bill.

The state attorney general’s office received 3,462 applications for permits in April, which was slightly down after three consecutive record-breaking months.

A year before, the state processed 1,442 applications in the month of April. In the past four months, 14,274 Kansans filed new concealed-carry applications. There are now 55,988 active concealed-carry licensees in Kansas.

Not sure I would use the cherry pick card on this article. As you would say...this is kinda of a big deal given the response (unconstitutional) by the US Attorney General. This story will only get bigger if this goes to litigation....where my money says the State loses decisively.

Brownie is not wasting the money. I'm sure he will make sure most of it goes to law firms that have supported him and his party. Also, the distraction this creates will take people's focus away from his bid to confiscate almost all of the money earned by the lower and middle classes and give it to the wealthy. I'm confident that Brownie sees the investment in defending this idiotic law as money well spent.

When you said "directly responsible", you revealed your over-zealous underpinnings. Expecting POTUS to "pick up the phone" also reveals a lack of knowledge of how the government works, especially interaction between WH & DOJ. You must be thinking of the W administration and their entrenchment in that era's DOJ. Or Nixon.

Yep...just political posturing (chest-thumping) by the Kansas legislators along with Brownback. It'll be interesting to see if the Feds decide to litigate this. If so, the real losers in all of this will again be the Taxpayers of Kansas. Lost Taxpayer's dollars (attorney fees) along with a court decision favors the Feds.

Actually, Fast and Furious program started in 2006 (Alberto Gonzales was the AG at that time...under George W. Bush) and ran into 2011. Holder became aware of the program in early 2011 and was cleared of any wrongdoing.

The operation was risky and ultimately backfired. You put more guns out there...time goes by...bad things are eventually going to happen. Tracking the guns become more difficult as time passes by. That's basic common sense.

Fast and Furious began under the Obama Administration. A similar program existed under Bush where guns were actually tracked to bad guys and arrests made. After Holder took over changes were made to the program which allowed weapons to flow into Mexico with no means whatsoever to track them until they showed up crime scenes. Don't let the facts get in the way here though.

The "means" to check the whereabouts of the weapons were there for both programs. Much of the difference in the two as I was told was that the gun traffickers were more sophisticated the second time around. They learned RFI tracking devices had been inserted into the weapons so they just waited until the aircraft tracking them had to leave to refuel. The traffickers then departed for their actual destinations.

I admit confusion. What does Little Sammy Brownback think he is protecting Kansas from? What are the big bad feds supposed to be getting ready to do to we Kansans and our guns? I have not been keeping up it seems.

Due to the irrational allegations stated by May_Day, and having never hear of the Daily Caller, I did some research. Daily Caller was founded in 2010 by Tucker Carlson, a libertarian conservative political commentator, and Neil Patel, former adviser to former Vice President Dick Cheney.

Comments can be taken more seriously when based on sources that are at least remotely unbiased.

Standard fauxnews/kochhead response - create a false equivelancy. Indoctrinated nut jobs spewing crap is not journalism. Can we all agree that fox and msnbc are entertainment networks that pander to folks to lazy to think for themselves or who need their own delusional thinking reinforced? Please?

Kansas also has some major military installations. That is a large part of why we are perceived as a "taker". Additionally, a high percentage of residents are retirees drawing Social Security (this is even more of an issue in Sun Belt states like Texas, Florida, and Arizona).

While I want to see accountability for military spending, the name "taker" is a bit of a misnomer.

I have been involved in agriculture my whole life, and I am dead against farm subsidies. They do need to be factored into the "taker" idea though.

The subsidies might have been intended to help farmers, but the unintended consequence is that equipment prices, and other expenses have risen as well due to increased demand. This is a classic example of where a government program has caused more problems than it could have ever solved.

Unfortunately, many people, both right and left, do not see these unintended consequences. We would all be better off if the government would get out of the subsidizing nonsense and let the market reset itself. There will be some temporary pain, but it will be better in the long run.

actually he is doing his job, unlike our governor who should have vetoed the bill. we are a union of states or we are not under a federal system. nullification did not work in 1861 and it will not work now.

A union of "States". State is defined: a politically organized body of people usually occupying a definite territory; especially: one that is sovereign (Webster’s). That's right, Kansas is a sovereign state. The federal government's authority to regulate firearms in this country is founded in the commerce clause (many would say that the use of the commerce clause is abused by the federal government). The commerce clause relates to interstate commerce, not intrastate commerce. Intrastate commerce is regulated by the state. While it is apparent that the Attorney General perceives his authority to extend beyond the constitutional limitations, his writing a letter stating his perception of the law does not make it law. If the federal government takes the authority over intrastate commerce then the existence of the State will cease to be. There is little purpose to state boundaries at all.
I implore all of you to read some of the FEDERALIST PAPERS to try to gain perspective about what the intentions of the authors of the Constitution were and why. This overreach is precisely what the citizenry feared when the Constitution was being debated as the replacement to the Articles of Confederation. The intent of the Constitution was to give the federal government only that authority which it needed to meet the objectives of the "unified states" but the intent was very clearly to preserve the supremacy of the State. Federal Supremacy was intended to be exercised very narrowly and was defined very narrowly in the Constitution. The courts have broadened that interpretation over the last century and a half but Constitutional that doesn’t make.
The law Kansas passed pertained to firearms manufactured and possessed within the State of Kansas negating even the most liberal of interpretations of the commerce clause. While today the issue may be guns and many of you don’t like them and feel the need to prevent your fellow law abiding citizen the pleasure of owning them. I caution you that it may some day be something that you value in the cross hairs of the federal government. I’m betting you’ll want support from the rest of us to prevent such government overreach regardless of our personal feelings on the issue. No matter, with a disarmed society the government will have no fear of the citizenry and therefore no restraint.

Of course, the Supreme Court (which is part of the Constitutional branches of government and tasked with interpreting the Constitution) has ruled that goods that, as a class, are part of normal interstate commerce can be regulated under the Commerce Clause, even for goods in that class that are produced, bought or sold solely within a state because that activity will affect the interstate commerce in those good. Now one might not agree with that interpretation, but only the Supreme Court decision matters, and until such day as that decision is overturned, the new state law is unconstitutional no matter how much whining you do about the federalist papers (which are not part of the Constitution).

The paranoid fear that modest gun control will lead to tyranny is just that - a paranoid fear. A quick trip to either Europe or Australia will tell you that. Actually, I have far more fear of heavily armed right-wing gangs than I do of the federal government.

what is scary about this, is a law school grad supported it. no wait a minute what am I talking about? I am beginning to believe there is a national conspiracy to suborn our federal system. Look at other states doing the same thing.

Congress and Obama are NOT exempt. In fact, the ACA specifically states that they aren't. And states were given huge latitude in implementing insurance and health care reforms. Kansas decided not to take that option and is now subject to the federal implementation of the plan. Brownback blew an opportunity to have more control.

Sorry, congress is just trying to make themselves exempt (WSJ, Forbes, Wash Post) shows me they have all the confidence in the world that Washington knows whats best... After all, the only people allowed to give away illegal guns (fast and furious) and buy millions of rounds of ammunition without question is Washington. I feel healthier all ready.

OK, I get that. But there is enough vague language in the second amendment that the federal government really has no jurisdiction regarding arms because it was originally "well regulated" by the states, so it should be now unless state regulations are found to infringe on citizen's rights. That or whatever legal basis is for due process to decide, not for a prosecutor to proclaim.

My understanding is that the feds use the ICC to give them authority to regulate here. The argument against that is that the law is only about guns made and sold in KS, so interstate commerce isn't involved.

The only problem with that is that the SC has ruled that intrastate commerce can be regulated under the ICC.

I disagree with that decision, but it's the decision relevant to this legislation.

The states will always lose, and spend a lot of time, energy and money to do so.

If one wanted to change the SC decision, the only way I'm aware of to do that would be to pass a constitutional amendment. Or, of course, one could try to get the issue there again for reconsideration, but I think the court is generally wary of doing that, and gives past decisions a lot of respect.

I think Brownback wants to force reconsideration. The makeup of the court changes, and so will the opinions of the justices. The Kansas gun law is not unlike the various medical pot laws around the country in that it is in opposition to federal law. I don't hear people complaining about that state legislation.

States can pass such laws, but this one is different in it's attempt to criminalize federal law enforcement efforts.

I'm not aware of any of the pot laws including provisions that federal law enforcement that attempts to enforce federal laws regarding marijuana will be treated as criminals by those states.

It's interesting, because the issue is the same - the feds use the ICC to prosecute marijuana users, even in states that have legalized it. In fact, the original case that stretched the use of that so far was a marijuana case. I think it was Rausch.

There may be any number of people complaining about legalization of marijuana, actually.

"are we all bozos on this bus?" I told a friend and fellow attorney about this. He got all hot and bothered about the over reach of the Federal government. I assured him that if I was still in the intelligence community I would land in his backyard in a black helicopter and take him to an off the books site for interrogation.

Yep...Lawrence along with the rest of the state will be picking up the tab. What's going to be more entertaining is watching the State get their arse handled to them in Court. I hope the Feds move forward with litigation.

Speaking of litigation...can't wait for the Kansas Supreme Court decision on the school financing case. Should be a big victory ($$$) for those pro-public education liberals (i.e. teachers) in Lawrence (along with the remainder of the State). :)

Yeah, and we pay for your wars, and the babies you don't have the money to raise, and for your farm subsidies. We also pay for the roads you drive on, the police who give you speeding tickets and the fireman who doesn't ask if you are for or against government employees as he saves your family. You're welcome, now quit whining and pay your taxes.

"Although colonial laws generally required militiamen (and sometimes all householders, too) to have their own firearm and a minimum quantity of powder, not everyone could afford it. Consequently, the government sometimes supplied “public arms” and powder to individual militiamen."

Gunpowder being volatile in those days was stored in a common power magazine and when General Gage ordered the seizure of several hundred pounds to deprive the colonists that really put the cat among the pigeons.

I have to say I agree with the intent of Governor Brownback on this as it does to me to be an overreach of authority, but as the Supreme Court has the last say, not me...

Well.. does this surprise me? Not in the slightest. Our so called "governor" and most of the legislature are a bunch of clown idiots. I personally think it's Brownback's personal mission to make national headlines daily. Clown! We should all take this opportunity and STRESS why it is so important for people to exercise their right to vote so that clowns like Brownback don't end up in office!

ridiculous

Until the Kansas government can guarantee that guns manufactured or sold in Kansas will remain in Kansas, their claim that only intrastate commerce is involved is specious. And that would require a degree of government regulation and control far beyond anything the Federal government has ever proposed.

No, anyone can legaly build a gun for their own use. I would advise staying within ATF guidelines, but it can be done. The only part of a gun that is considered a gun is the receiver. It would not take a machine shop with CNC mills too long to start making AR 15 lower receivers. AK receivers are even easier as they are stamped. Everything else could be imported as only the receiver is the gun. To do this to sell may take a license. It did before this law was past. Give me a milling machine and a lathe, and I am pretty sure I could make an AR lower. Probably take me a few times to get it right. Just saying.

Brownback knew it when he signed it, but the crazed zealot doesn't care about constitutionality, just like he doesn't give a tinker's damn about the people of this state. It's all about his personal far, far, far right agenda.

Who's afraid of the big bad wolf, the big bad wolf? Dealing with Kansas is one thing dealing with 30 or more states is horse of another color. Funny how the "attorney general" see's the fight in Kansas as possible litigation. He would be wise to think twice should he think Kansas will hide under our beds as they did in Boston when the police came to illegally search homes with impunity. The next step for like minded states should be a self defense agreement. Holder knows how that will work. An attack on any freedom loving state is an attack on all freedom loving states.

"So if a Timothy McVeigh or Mohammed Atta clone is found with an unregistered machine gun, Kansas LE can't/won't notify the Feds?"

I think the same gun has to be registered under state law and the criminal could be as easily prosecuted by Kansas for that offense. A casualty in this in this latest round of attempts at further gun regulation may be states cooperating with the fed in such cases.

This is what yu get when you elect officials who are intent on defying the black dude in the White House. It is no secret that the Kansas Legislature is doing everything it can to violate Federal law and the idiot governer is going along with it. We elected these people to represent us, not to pursue a vendetta against the Federal Government. What a waste of money! Brownback and Kobach have to go, they are totally not the sort of representatives we need in "Bleeding Kansas">

Has anyone here considered that the purpose of this law was simply to send a message to Washington, "don't try to bully us-leave our constitutional rights alone!" I think the folks who wrote and passed this law are not all the backwoods morons some here would like us to believe-I think they are smart enough to know that the State of Kansas cannot usurp Federal Law.....I think they just wanted to send a message. Nothing more. Think about it. Passing this law surely got more attention than if the legislature had stood outside on the steps of the Capitol building holding up signs saying "don't mess with our rights." A lot more attention.
But then, I guess it's more "in" to simply say our lawmakers are all dolts and morons, huh..

I'm deeply ashamed of Paul Davis and Barbara Ballard. How on earth do they defend voting for this constitutionally illiterate travesty? Of course there's no sound argument -- they simply don't want to be disingenuously smeared in the next election as being anti-2nd amendment. Apparently only Fransisco and Wilson have the courage of their convictions...

It reminds me of the Republican senators who put side personal support for the background check bill and voted against it simply for fear of the NRA and the frothingly far-right GOP base.

Our elected officials' behavior is screaming for us to create a new word to describe this mortifying mixture of abject cynicism and cowardice.